Representations and Warranties
The Merger Agreement contains representations and warranties of the Company, Merger Sub and DiaCarta, certain of which are qualified by materiality and material adverse effect and may be further modified and limited by the disclosure letters. The representations and warranties of the Company are also qualified by information included in the Company’s public filings, filed or submitted to the SEC on or prior to the date of the Merger Agreement (subject to certain exceptions contemplated by the Merger Agreement). The representation and warranties made the Company and DiaCarta are customary for transactions similar to the DiaCarta Business Combination.
Representations and Warranties of DiaCarta
DiaCarta has made representations and warranties relating to, among other things, DiaCarta organization, subsidiaries, due authorization, no conflict, governmental authorities and consents, capitalization of DiaCarta and its subsidiaries, financial statements, undisclosed liabilities, litigation and proceedings, legal compliance, contracts and no defaults, DiaCarta benefit plans, labor relations and employees, taxes, brokers’ fees, insurance, licenses and permits, equipment and other tangible property, real property, intellectual property, privacy and cybersecurity, environmental matters, absence of changes, anti- corruption compliance, sanctions and international trade compliance, information supplied, customers and suppliers, financial assistance, government contracts and related party transactions.
The representations and warranties of DiaCarta identified as fundamental under the terms of the Merger Agreement are the representations and warranties made pursuant to the first and second sentences of Section 4.1 (DiaCarta Organization), Section 4.2 (Subsidiaries), Section 4.3 (Due Authorization), Section 4.4 (No Conflict), Section 4.5 (Governmental Authorities; Approvals); Section 4.6 (Capitalization of DiaCarta), Section 4.7 (Capitalization of Subsidiaries) and Section 4.16 (Brokers’ Fees) of the Merger Agreement.
Representations and Warranties of the Company and Merger Sub
The Company and Merger Sub have made representations and warranties relating to, among other things, the Company’s organization, due authorization, no conflict, litigation and proceedings, SEC filings, internal controls, listing, financial statements, governmental authorities and consents, trust account, Investment Company Act and JOBS Act, absence of changes, no undisclosed liabilities, capitalization of HH&L, taxes, brokers’ fees, business activities, the NYSE stock market quotation, registration statement and proxy statement/prospectus, affiliate transactions, information supplied, issuance of shares, anti-money laundering laws compliance and litigation.
Survival of Representations and Warranties
Except in the case of claims against a person in respect of such person’s willful misconduct or actual fraud, the representations and warranties of the respective parties to the Merger Agreement generally will not survive the Closing.
Covenants and Agreements
DiaCarta has made covenants relating to, among other things, DiaCarta’s conduct of business, access, preparation and delivery of additional DiaCarta financial statements, exclusivity, and DiaCarta’s shareholder approval.
The Company has made covenants relating to, among other things, the Company’s conduct of business, no solicitation by the Company, preparation of proxy statement/prospectus, the Company’s shareholder approval, post-closing directors and officers, indemnification and insurance, trust account proceeds and related available equity, the NYSE or Nasdaq listing, the Company’s public filings, transaction financing, extension of time to consummate a business combination, blank check company status, and compliance with the Company’s IPO agreements.
In addition, the Company and DiaCarta agreed to, among other things, to (i) prepare the registration statement on Form S-4, (ii) use reasonable best efforts to have the registration statement on Form S-4 declared effective, and to keep such registration statement effective as long as necessary to consummate the transactions contemplated hereby; (iii) use reasonable best efforts to obtain any necessary or advisable regulatory approvals, consents, actions, non-actions, or waivers and to cause the expiration or termination of the waiting, notice or review periods under any applicable regulatory approval as promptly as possible; (iv) diligently and expeditiously defend and use reasonable best efforts to obtain any necessary clearance, approval, consent or governmental approval under laws prescribed or